Even though the 1830 Brazilian Criminal Code – enforced eight years after the country became independent from Portugal – foresaw the crime of copyright infringement , the first Brazilian law specifically aimed at authorial protection was the 1898 Law no. 496, also referred as Medeiros e Albuquerque Law, in honor of its author.
Until the advent of that law, in Brazil, intellectual work was a no man’s land. So much so that Pinheiro Chagas, a Portuguese writer, used to complain about having a “customary thief” who also had the audacity to write him saying: “Everything published by Your Excellency is wonderful! I do what I can for you to become known in Brazil by reprinting it all!” At that time, it was common to think that foreign works, even more than the national ones, could be indiscriminately copied .
However, the 1898 Law 496 was soon revoked by the 1916 Civil Code, which classified copyright as a mobile good , fixed for five years the prescription term for civil actions on copyright infringement, and regulated some aspects of the subject in chapters on “Literary, Artistic and Scientific Property”, “Publishing”, and “Dramatic Acting”.
From the enforcement of the Medeiros e Albuquerque Law to the advent of the Brazilian Copyright Law, in 1973, the country witnessed the appearance of several legal decrees aimed at the regulation not only of the copyright, but also of related issues. This is how, for example, the 1924 Decree 4.790 defined copyright, the 1928 Decree 5.492 regulated the organisation of entertainment enterprises and theatrical services leasing, and the 1932 Law Decree 21.111 gave normativity to the execution of broadcasting services in the national territory. That is certainly not a short list.
It was only in 1973 that Brazil saw the enforcement of a unique and comprehensive statute that regulated copyright. “Being the Civil Code provisions promulgated earlier this century not appropriated anymore, notwithstanding its up-to-dating carried out through a number of laws and decrees that always situated our legislation among the most progressive ones, due to impositions related to modern communications media, there was a need for facilitating the use of a single text” .
Law 5,988, of 1973, was in force until the approval, by Brazilian Congress, of the 1998 Law 9,610, influenced by World Trade Organization’s TRIPS Agreement. This is the current regulating law in Brazilian territory for copyright protection.
Copyright in Brazilian Constitutions over the years
The first Brazilian constitutional document – the 1824 Empire’s Constitution –, despite of its remarkable relevance both historical and as a political steadiness instrument, did not contemplate the rights of literary, artistic and scientific works’ creators. At that time, that issue had not achieved the importance that the upcoming Constitutions would attach to it.
The first Constitution to guarantee the creators’ rights was the 1891 Republic of United States of Brazil’s Constitution, in its sector dedicated to the Declaration of Rights. From the very beginning, public freedom and authors’ rights always walked side-by-side, as related and complimentary institutes. Its Article 72, paragraph 26, draws the juridical framework that defined the authors’ rights for all the upcoming years:
It is guaranteed to the authors of literary, artistic and scientific works the exclusive right to reproduce them through press or any other mechanical process. The authors’ heirs will have the use of that right for the time determined by law.
It can be found in this paragraph the foundation of the subject’s three main characteristics. Three concepts, actually: of work associated to the mechanical reproduction; of author’s exclusivity; and of transmissibility. Those three fundamental freedoms enclosed in 1891 Constitution’s paragraph 26 of Article 72 were kept intact until the 1969 Constitutional Amendment.
In parallel, that Declaration of Rights guaranteed the free exercise of any moral intellectual and industrial profession (paragraph 24), and safeguarded the free manifestation of thoughts through press or tribune, without depending on censorship (paragraph 12).
But it was not due to internal motivations that 1891 Constitution took the authors’ rights in. The reason for that was the international meeting occurred between 1824 and 1891 that resulted in Berne Convention, the first international normative instrument to deal with literary and artistic works protection – and that ended up influencing all the constitutions and special legislations of the western world countries.
Under 1891 Constitution’s groundwork, in 1898 it was published the first Brazilian law about author’s rights: Law no. 496 (Medeiros e Albuquerque Law), the only one to define the issue:
The rights of the author of any literary, scientific or artistic work consist in the faculty, owned exclusively by himself, to reproduce or authorize the reproduction of his work through publishing, versioning, acting, performing or through any other means.
Brazil starts a movement for the reform of the copyright law
In September, 2007, the then Minister of Culture and Brazilian top music artist Gilberto Gil, in an article published on Folha de São Paulo , one of the main newspapers in Brazil, got to announce the National Copyright Forum.
That was an initiative run by the Ministry of Culture aimed at discussing the problems of the current legislation and amendment proposals. It included five national seminars, one international seminar and several local workshops. But, more than raising the discussion, the Ministry of Culture is participating of the National Copyright Forum with a clear posture in behalf of the Brazilian Copyright Law amendment. As Mr. Gil's article puts it:
The consolidation of authors' laws, back in XIX century, always had a fundamental goal: to stimulate creation as a way to improve society's welfare. Is our current law attaining to that goal? In my view, this is not the case. (...)
It's been ten years since the last Brazilian Copyright Law amendment, and now it's time for society to consider if there's a need for an update. Many are the (dissatisfactions) with the current model, to begin with the authors, who do not feel entirely protected nor well remunerated. In addition to that, there is the challenge of the new digitally-based business models and, also, the deepening of democracy and the Brazilians' will to access culture, as part of their integral human formation.
Today the law is too anachronistic to take care, in a balanced way, of both authors and consumers and citizens. The mere reproduction of a musical file into an mp3 player contravenes our authors' legislation, that makes no difference between private copy and a copy with piracy purposes. Both authors and consumers would agree that that is a relevant way of spreading culture and remunerating artists. (...)
Distortions on current law create a clear imbalance between the incentive to creation versus access to culture on one side, and, on the other side, the incentive to creator versus the investor's remuneration. Technology certainly interferes in that process, placing ourselves in front of challenges that will be confronted with loads of social debate, negotiation and innovation. The fundamental question to be faced is: how to properly remunerate the local creator and the wellness that he propitiate to the whole society?
In this sense, I am happy to announce that the Ministry of Culture will carry out a series of meetings, seminars and workshops integrating a national forum on copyright that will promote a broad debate with the society and all the actors involved in the authorial issue, aiming at defining the best way to promote those balances I mentioned, as well as the actuation expected from the public power in order to bring more transparency and justice into the authorial field.
Those ideas got to be publicly completed on a following article, published a few months later on O Globo newspaper. In his text, then Minister Gil finished pointing out and developing the ideas behind the three main axis of the Ministry's action:
We got some foregoing ideas on how to restore those balances, that are fruit of several complaints received by the Ministry about the current law format and of comparative studies of other countries' legislations. Those ideas cover three main issues: 1) to redefine the paper of the State in the authorial area: Brazil is one of the very rare cases in the world in which the State has not got any role in the authorial field, and also there's no mediation and arbitration instance within the State for solving conflicts of interests in this area, relieving an overloaded Judiciary Power; 2) to rethink the limitations chapter in our law, in which there's a remarkable imbalance, not foreseeing, among others, the access of several categories of disabled people to protected works, or the copying for private use, a case in which university courses are the main affected; 3) to make the authors retake control over the use of these works, as in the current law it is allowed to celebrate contracts containing clauses of total and definitive assignment and transference of rights, a practice imposed by the business market that prejudices the authors as for the management in future uses of their creations.
Copyright General Coordinator of the Ministre of Culture, Marcos Alves de Souza, completes in an interview:
There must be a revision of the limitations and exceptions chapter that turn possibilities compatible with our reality. For example, the right of private copying with an equitable remuneration, limitations for educational uses, for people with disabilities, for libraries, etc. This is not about lowering rights nor making rights flexible. We are not defending something that do not exist in other countries' legislations: we just think that ours is too restrictive.
Bibliography
ABRÃO, ELIANE Y. Direitos de autor e direitos conexos. São Paulo: Editora do Brasil, 2002.
BRANCO JUNIOR, SÉRGIO VIEIRA. Direitos Autorais na Internet e o Uso de Obras Alheias. Rio de Janeiro: Lumen Juris, 2007.
COSTA NETO, JOSÉ CARLOS. Direito autoral no Brasil. São Paulo: FTD, 1998.
GARNER, BRYAN A., editor, Black's Law Dictionary 8th ed. Thomson West, 2005.
tags: rio-de-janeiro brazil policy-law brazil copyright local-context-global-commons bisa-copyright-review trips gilberto-gil
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